Karnataka High Court
M/S Basaveshwaranagara vs Sunjoy Mohan Puri on 26 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
R.F.A. NO.285 OF 2013
BETWEEN :
1. M/S. BASAVESHWARANAGARA
INSTITUTE FOR SPORTS AND CULTURAL
ACTIVITIES, NO.490, FIRST FLOOR,
8TH MAIN CIRCLE, 3RD BLOCK,
3RD STAGE, BASAVESHWARANAGAR,
WEST OF CHORD ROAD, BANGALORE - 560 079.
2. THE SECRETARY,
M/S. BASAVESHWARANAGARA,
INSTITUTE FOR SPORTS AND CULTURAL
ACTIVITIES, NO.490, FIRST FLOOR,
8TH MAIN CIRLC, 3RD BLOCK,
3RD STAGE, BASAVESHWA RANAGAR,
WEST OF CHORD ROAD,
BANGALORE - 560 079.
... APPELLANTS
(BY SRI: N. SUBBA SHASTRY, ADV.)
AND :
SUNJOY MOHAN PURI,
S/O. SRI. LALIT MOHAN PURI,
AGED ABOUT 46 YEARS,
CLAIMING TO BE RESIDING AT
NO.490, 8TH MAIN CIRCLE, 3RD BLOCK,
3RD STAGE, BASAVESHWARANAGAR,
WEST OF CHORD ROAD, BANGALORE - 560 079.
... RESPONDENT
(BY SRI: V. B. SHIVAKUMAR, ADV.)
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THIS RFA IS FILED UNDER ORDER-41, RULE-1,
R/W, SEC.96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 27.11.2012 PASSED IN O.S.
NO.5568/2009 ON THE FILE OF THE XII-ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING
THE SUIT FOR EJECTMENT.
THIS APPEAL COMING ON FOR ORDER THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful defendants are before this Court questioning the correctness and legality of decree passed in O.S.5568/2009 by XII Additional City Civil Judge, Bangalore dated 27.11.2012 whereunder suit filed by plaintiff against defendants for ejectment from suit schedule property bearing 490, 8th Main, 3rd Stage, 3rd Block, Basaveshwaranagar, Bangalore-79 has been decreed.
2. Though matter is listed in orders list by consent of learned advocates appearing for parties it is taken up for final disposal. I have heard the arguments of Sri.Subba Shastry, learned counsel appearing for defendants-appellants and Sri.V.B.Shiv Kumar, appearing for respondent/plaintiff. Perused the 3 judgment and decree passed by trial court. Parties are referred to as per their rank in trial court. Suit schedule property was originally let out to the defendants by its erstwhile owner Sri.G.S.Hari Krishnaiah in the year 1993 for a premium of Rs.5,50,000/-. Subsequently, suit schedule property was purchased by Sri.Lalit Mohan Puri on 12.07.1995, father of plaintiff under registered sale deed dated 12.7.1995. He died living behind his wife Radharani, sons namely Sunjoy Mohan Puri (Plaintiff) and Harmohan Puri and daughter Ms.Rubi Chawal.
3. Defendants have been deemed to have attorned tenancy in favour of purchaser Lalit Mohan Puri. Plaintiff and his mother issued notice on 22.11.2008 terminating the tenancy and on account of possession not being handed over after such termination, plaintiff has filed the suit for ejectment. Defendant on service of suit summons, appeared and filed detailed written statement denying the averments made in plaint. Ownership of the property came to be 4 denied and all other averments made in the plaint also came to be denied.
4. On basis of the pleadings of the parties, Trial Court framed following issues for its consideration:-
a) Whether the plaintiff proves that he is the owner of the suit schedule property and the defendant is his tenant?
b) Whether the tenancy is a monthly tenancy?
c) Whether the notice of termination is valid?
d) What order or decree?
5. Parties tendered evidence both oral and documentary and same came to be adjudicated and trial court decreed the suit against defendants and directed them to quit, vacate and handover vacant possession of the suit schedule property within 3 months from the date of order and further direction has also been issued to plaintiff to refund a sum of Rs.5,50,000/- paid by the defendants to the erstwhile owner Sri.Hari Krishnaiah. 5
6. Having heard Sri.N.Subba Shastry, learned counsel appearing for appellants and Sri V.B.Shiva Kumar, learned counsel appearing for respondent, I am of the considered view that though defendants have denied attornment of tenancy and there being no privity of contract between plaintiff and defendants, said contention cannot be accepted in view of law laid down by this Court in case of Popular Automobiles vs. N.Veeraswamy reported in ILR 1989 KAR 1555. There is deemed statutory attornment and as such appellants-defendants cannot contend that there is no attornment of tenancy undisputedly, notice determining tenancy came to be issued by plaintiff as per Ex.P-6 and same has been replied by defendants in Ex.P10. Judgment passed by Trial Court would clearly indicate that while adjudicating the issue, Trial Court has relied upon the judgment of the Apex Court in case of Mahendra Raghunathdas Gupta vs. Vishwanath Bhikaji Mogul reported in AIR 1987 SC 2437 to arrive at a conclusion that attornment of tenancy would not be 6 required as it is implied that there is continuation of tenancy, for rejecting the contention of defendant regarding non-attornment of tenancy, as a ground to non suit the plaintiff. I do not find any good ground to deviate from the finding recorded by the trial court.
7. While answering issue Nos.2 and 3, Trial Court has taken note of the fact that there was an unregistered Lease entered by erstwhile owner with defendants and though duration of lease was for 10 years, it was not registered and when this is so, Section 106 of Transfer of Property Act is attracted and it would required to be treated as monthly tenancy. It found that even otherwise, duration of 10 years having lapsed in the month of July 2003 itself, 15 days time stipulated under Section 106 of Act having been given for termination of tenancy as per Ex.P-6, it answered these two issues in the affirmative, i.e., in favour of plaintiff and rightly so. I do not find any illegality or perversity in the judgment passed by Trial Court so as to enable 7 this Court to clutch the appellate jurisdiction to up set the said finding.
8. In view of the aforesaid reasons, appeal is dismissed. However, taking into consideration that appellants-defendants have been carrying on their activities in the suit schedule property for more than 19 years, 15 months time is granted to quit, vacate and handover vacant possession of suit schedule property in favour of plaintiff subject to condition that an affidavit of undertaking shall be filed by them within 5 weeks from today agreeing to voluntarily surrender the suit schedule property to plaintiff, without driving them to initiate execution proceedings.
9. It is also made clear that in the event of affidavit of undertaking is not filed, time granted by this Court will not enure to the benefit of appellants- defendants and respondent-plaintiff would be at liberty to execute the decree.
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Parties to bear their respective costs.
Sd/-
JUDGE DM